Analysis of 35 S.W.3d 632 with Regard to Texas Gun Lawsby Donald Ray BurgerAttorney at Law

Holding of Case: Texas Supreme Court ruling in Tune v. Texas Dept. of Public Safety, 23 S.W. 3d 358 (Texas 2000), applies even if convicted person is granted a new trial and case against him is dismissed after probation was completed.

Analysis of Case:

McLendon applied for a CHL in 1996. In 1969 McLendon had pled guilty to a felony and was sentenced to five years confinement. That sentence was suspended and McLendon was placed on probation, which he successfully completed. The District Court then discharged him from probation, granted him a new trial, and dismissed the case against him.

In Tune v. Texas Dept. of Public Safety, 23 S.W. 3d 358 (Texas 2000), the Texas Supreme Court held that under Section 471.172 (a)(3) of the Texas Government Code (which states that a person who has been convicted of a felony is ineligible for a CHL) a person is "convicted" whenever there is an adjudication of guilt or an order of deferred adjudication is entered, whether or not the sentence is subsequently probated.

McLendon argued that the rule in Tune did not apply to him because he had been granted a new trial and his case was then dismissed.

The Texas Supreme Court refused to go along with this theory, calling it "a difference without distinction."